Calcutta High Court (Appellete Side)
Smt. Sumitra Sha & Anr vs National Insurance Company & Ors on 28 July, 2023
16
jks 28.07.2023
FMA 1394 of 2015
With
CAN 1 of 2022
Smt. Sumitra Sha & Anr.
Vs.
National Insurance Company & Ors.
Mr. Krishanu Banik
Mr. Tathagata Banik
Ms. Jaita Ghosh
... ... for the appellants
Mr. Saswata Bhattacharya
... ... for the respondents
In Re: CAN 1 of 2022
Heard the learned advocate for the
appellants CAN 1 of 2022 disposed of with
direction that the appellant no.2 has become
major. Thus the necessary noting be made at the
memo of the appeal by the concerned department
within a fortnight. It further appears that the name
of the of the appellant no.2 is appearing in the
Aadhar Card as well as PAN Card as "Prianshu"
instead of "Priansu" so the department is also
directed to make the necessary corrections in the
cause title of the memo of the appeal.
The instant appeal is preferred against the
judgment dated 25th February, 2014 passed by the
learned Judge, Motor Accident Claim Tribunal, 2nd
Court, Hooghly in MAC Case No.33 of 2012. The
claimants are the appellants here. The brief facts of
the case is that the claimants filed an application
before the learned Tribunal under Section 166 of
the M.V. Act for getting compensation on the
ground that their predecessor died on a road traffic
accident on 2nd August, 2011. The insurance
company contested the case by filing written
statement. The claimants have produced the oral
and documentary evidences before the learned
Tribunal. Learned Tribunal after hearing both the
parties passed the award in favour of the claimants
amounting to Rs.1,79,500/-. Now the appellants
are before this Court for enhancement of the
award.
Learned advocate for the appellants
submitted that learned Tribunal has not
considered the evidence on record and the
impugned award passed by the learned Tribunal is
erroneous. He pointed out the claim application
stated the income of the deceased to be 13,000/-
per month which was not considered. The
occupation of the deceased was supply of labour
for which one co-employer appeared before the
learned Tribunal deposed as PW-2. Learned
Tribunal has not considered the evidence of the
PW-2 and calculated the compensation by fixing
the yearly income of the deceased notionally to be
Rs.15,000/- per year.
Learned advocate for the appellants further
submitted before this Court that the income of the
deceased should be calculated at least Rs.4,000/-
per month. He prayed for just compensation.
Learned advocate for the insurance company
raised strong objection and submitted before this
Court that the impugned award passed by the
learned Tribunal suffers from no illegality. The
impugned award was passed by the learned
tribunal after considering the evidences and
materials on record. He again pointed out that
there is no documentary evidences regarding the
proof of income of the deceased. Thus the learned
Tribunal has assessed the income on the basis of
the notional income as provided under the
provisions of MV Act. He also pointed out that
learned Tribunal has committed no error and
passed the speaking order. Thus there is no chance
to interfere.
Heard the learned advocates. Perused the
materials on record. It appears to me that the
monthly income of the deceased in the claim
application stated to be Rs.13,000/-. Wife of the
deceased appeared before the learned Tribunal as
PW-1 who deposed regarding the income of the
deceased Rs.10,000/-. No documentary evidence is
produced during the trial. It appears to me that to
prove the income of the deceased there were no
documents before the learned Tribunal. Stray oral
evidences were laid before the learned Tribunal.
However, in considering the judgment of several
High Courts as well as Apex Court passed in
Pronay Shetty and Sarala Verma the notional
income of the deceased should be calculated when
there are no cogent and reasonable evidence on
record to be Rs.3,000/- per month.
It is the practice of this Court that in
absence of any reliable documentary evidence
regarding the income of a deceased under Section
166 of MV Act who were died in road accident from
the 2011 to 2014 the monthly income notionally
assessed as Rs.4,000/- per month. This view is
adopted by this Court in several occasions. Thus I
find it necessary to adopt same view. In this Case
the income of the deceased should be calculated as
Rs.4,000/- per month. It appears that learned
Tribunal also not considered the future prospects
and the general damages in this case. Thus in this
score by virtue of the judgment of the Hon'ble Apex
Court in Pronoy Shetty the appellants are entitled
to get compensation towards the future prospects
and general damages. Considering the entire
aspects it appears to me that the impugned award
passed by the learned Tribunal need to be
modified.
Hence, the just and proper compensation in
this case is as follows:
Monthly Income be assessed as Rs. 4,000/-
Annual Income be assessed as Rs.48,000/-
(Rs.4,000/- X 12)
Future Prospect be assessed 40% i.e. Rs.19,200/-
Rs.67,200/-
1/3rd Deduction (67,200-22,400) Rs.44,800/-
Multiplier as per age 16 (Rs.44,800/-X 16) Rs.7,16,800/-
General damages Rs.70,000/-
Total Rs.7,86,800/-
Less awarded amount Rs.1,79,500/-
Rs.6,07,300/-
The respondent insurance company is
directed to pay the balance amount of
compensation amounting to Rs.6,07,300/- to the
claimants along with 6 per cent interest per annum
from the date of filing of the claim application (from
21st February, 2012). The impugned award has
reflected that Rs.50,000/- if given to the claimants
under Section 140 has to be deducted from the
amount of compensation. The same direction be
exist accordingly. The insurance company is
directed to pay the balance compensation with the
office of the Registrar General, High Court,
Calcutta within eight weeks from the date of
passing of this order. On such deposit the
claimants are at liberty to withdraw the same
according to the prevalent Rules subject to the
ascertainment of payment of requisite Court fees.
It appears that by virtue of the direction of
the Tribunal the appellant no.1 has deposited the
award amount in a Nationalised Bank so that the
they may utilised by the minor claimant. As the
claimant has got majority so the claimant no.2 is at
liberty to use the same.
The instant FMA is disposed of
All connected applications, if any, stand
disposed of.
Parties to act upon the server copy and
urgent certified copy of this order be provided on
usual terms and conditions.
(Subhendu Samanta, J.)
